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HR to Go podcast episode 7: Employee monitoring and surveillance (transcript)

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Welcome to HR to Go by Effective Workplace Solutions. In this episode of HR to Go, we will be chatting about employee monitoring in the workplace. With the increase in hybrid work environments and work-from-home arrangements, we are seeing an increase in employers starting to consider how to monitor the activities of their employees in the workplace. In Australia, there is no current uniform workplace surveillance laws.

Each state in Australia has different laws regarding surveillance and there is also Federal legislation in place regarding surveillance. There are similar provisions in New South Wales and the ACT because these two states also have legislation to regulate workplace surveillance. The other states in Australia have broadly regulated surveillance, but do not necessarily specifically regulate surveillance in the workplace. When considering employee monitoring in the workplace, employers must also balance the need to monitor versus employee privacy.

There is a whole suite of legislation regarding employee privacy. Employers must also consider balancing the need to monitor versus employee privacy and consideration should also be given to workplace culture and the impact that monitoring and surveillance might have on that culture. In terms of workplace surveillance, there is broadly four categories of surveillance. We have optical surveillance, which includes CCTV, dashcams and drones.

There is audio surveillance, and this includes things like listening devices, recording incoming and outgoing telephone calls and monitoring of radio communications. There is also tracking surveillance, which includes GPS monitoring and smart phone or smart watch location tracking. Then there is data surveillance. This might include keystroke monitoring, monitoring emails and instant messaging, monitoring Internet usage and website access, as well as monitoring smartphone usage.

What are the reasons that a business might choose to monitor their employees?

Safety and security of property and personnel probably tops the list of reasons that an employer might choose to monitor their employees. When you have scenarios where employees are working away from the main office or they might be working onsite with a client or going into someone’s home in the case of those businesses that provide home care services, then monitoring where their employees are, at any given time, actually becomes a safety issue, as well as allowing the employer to understand where their staff are.

Why might a business choose to monitor their employees?

The reasons for monitoring are probably going to be as individual as the business itself, but there are a few general reasons that employers or businesses tend to choose to monitor their employees.

Probably first and foremost, it is safety and security, and that extends to both property and the individual employees or their personnel.

There are a number of businesses that operate where employees are not actually working in office spaces. They might be working in a client’s workplace or indeed, in terms of those home and community care services, you actually have employees that are going into someone else’s home. It means that they could go for days without actually seeing their employer or seeing the inside of an office.

For employers to know where their employees are, at any given time, allows them to ensure that they are operating in a safe workplace and that they have not experienced any harm.

Another reason why monitoring occurs is to prove or to support an employer to prove or disprove that something has occurred with the increase in workplace issues such as bullying and harassment, sexual harassment, that sort of scenario.

Having CCTV footage allows a business to undertake investigations and either prove or disprove that something has occurred. This also supports if there are issues with clients or customers in the workplace, or perhaps there is an allegation that an employee has done something, perhaps stolen something. So there are a number of reasons why businesses choose to monitor. It can also be for employee performance management.

As we talked about earlier, we are seeing these hybrid or work from home arrangements where you do not have a direct line of sight as to what employees are actually doing. So monitoring with say, keystroke monitoring or monitoring their computer usage, allows employers to actually determine whether or not an employee is actually performing the tasks they are meant to be doing and performing to a standard that they are meant to be performing to.

Then we have situations with say, trucking companies, where monitoring can allow them to manage things like fatigue and make sure that their employees are taking the breaks they need to take.
Is employee monitoring legal?

Well, yes, it is, but only when it is done correctly. Employers are generally permitted to monitor their employees in the workplace, provided they have given the employee 14 days’ notice in advance.

That is generally considered to be via the implementation of a workplace policy and that monitoring occurs as per the notice that has been provided to their employees. We should note again that there are differing laws across Australia in relation to surveillance and workplace surveillance, so it is critical that as an employer who is considering commencing surveillance or monitoring or is currently undertaking surveillance or employee monitoring, that they are checking with those laws for the relevant jurisdiction and making sure that any actions taken do comply with those laws.

For those businesses that operate businesses across multiple states within Australia, it really is important that you are across and aware of your obligations under the legislation for each of those individual jurisdictions, and that gives careful consideration as to how you are rolling out employee monitoring and surveillance in your workplaces across those different jurisdictions.

Monitoring employees when they have not been informed of monitoring

This is known as covert surveillance, and it is only allowed to occur where the employer has obtained a covert surveillance authority issued by the Magistrates Court. So to be clear, you cannot be surveilling or monitoring your employees without them being aware that you are doing it.

Is it legal to record private conversations or telephone calls?

Again, yes, it is, but only when done correctly. Once again, it is about making sure that you are aware of the laws regarding surveillance within your relevant jurisdiction before you actually commence any recording of private conversations or telephone calls. The best practice would be to only record private or telephone conversations if all of the parties are informed and they consent to that recording.

We would suggest that the consent be recorded at the commencement of the discussion so that is making everyone aware. Once you have hit the record button that you are about to record it and then recording their consent to the conversation being recorded. In terms of monitoring employees’ personal devices, this is another common question that comes up when we consider monitoring and surveilling employees in the workplace.

Is it legal to monitor your employees’ personal devices?

Again, it is only when it is done correctly and in reference to the relevant surveillance legislation within your jurisdiction. The employer can monitor and collect data from a personal device within company premises provided the employer creates a “bring your own device” policy that outlines the legitimate business reasons for monitoring that personal device and the employees are informed and consent to that monitoring.

It is important that you have policies in place about how that will occur, and consideration should be strongly given as to how that is going to occur, given the fact that it is not legal to monitor an employee when they are not at work. So if they are using their own devices, being really careful about when that monitoring will occur, so you are not overstepping the mark in that regard.

In terms of monitoring policies, there are a number of workplace policies that you may already have in place. If not, you might be considering putting in place in relation to employee monitoring and surveillance, for example, social media policies. They tend to explain to employees when you are considering workplace surveillance and monitoring and then considering the policies you might need to have in place.

There are a number of different policies that tend to be in place in a workplace regarding monitoring and surveillance. For example, your social media policy that may actually talk about the fact that you will be monitoring how employees interact on social media and that whilst they might be doing that outside of work, if it does impact the business, there may be consequences for that.

That is policies like we have already talked about with your “bring your own device” policy that is going to outline how you monitor the usage of a personal device. Obviously, those policies like your workplace surveillance policy that might talk about CCTV, the GPS tracking, that sort of thing, and then your information, communication and technology policies that talk about how you are going to monitor email use, perhaps incoming phone calls and the way that those devices can be used in the workplace in terms of these individual policies.

It is important that in every policy you are explaining the employer’s expectations and the employee’s responsibility. The policy should outline how the employer intends to monitor the employees and the reason for undertaking that monitoring or surveillance and the duration of that surveillance or monitoring. The policy should also refer to the applicable laws and outline the consequences for breaches of policy, including things like disciplinary action up to and including termination.

If you are intending to commence surveillance or make changes to your current surveillance and monitoring practices, you do need to provide the employees with 14 days’ notice. To be clear, if you are already surveilling and you are going to be making a change to how you surveil, you need to provide your employees with 14 days’ notice of that change.

If you intend to introduce surveillance into your workplace, you need to give your employees 14 days’ notice. In addition to having policies and procedures in place, there are some other practical considerations in terms of implementing surveillance. So it is important for you to have a look at the award that you are currently engaging your employees under, or if you have got an enterprise agreement in place, having a look at that to check whether there are any consultation requirements that need to be adhered to.

Generally speaking, awards and enterprise agreements may have a consultation clause for significant workplace change and arguably the introduction of surveillance or the addition to your current surveillance practices might be considered a significant workplace change. It is also important to have a look at whether you need to do any consultation action on workplace safety legislation and also the implications around privacy.

So as I mentioned earlier in the podcast, there are a number of privacy considerations that should be reviewed prior to implementing developments in the workplace and making sure that you are not breaching any of those obligations and that those people who are practically implementing the surveillance in your workplace are aware of their obligations in that regard.

In terms of the risks that come with monitoring, probably the biggest risk is the fact that there are no uniform workplace surveillance laws across Australia, which means that for those businesses that are fluid across different states, there are certainly some implications there and making sure that you are not breaching any of those surveillance laws.

It also makes it quite complicated in terms of application because you do need to be across what you can do in a particular state versus what you cannot do in another state and then trying to unpack that for your particular workplace can be complicated. There is also the risk that employees might take a claim such as a general protections claim or breach of contract if they feel that there has been a breach of good faith or trust and confidence.

Regarding the implementation of surveillance, employees can also make a complaint to the Office of the Australian Information Commissioner as well in that regard. There are also risks if you have not made your employees aware of the fact that you are surveilling or monitoring and that they are not aware of the relevant policy and not trained in that regard as well. Importantly, with your workplace surveillance policies, these need to be regularly reviewed and revised.

This is certainly not an area of policy where it is a case of sit and forget. It is very important that you are constantly reviewing and making sure that your practices within your workplace are compliant.

Thank you for listening to another episode of HR to Go.

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